Notes on the filibuster

If you happen to be near C-SPAN 2 at 10 a.m. Eastern today, you can catch me and a couple of other folks talking about the filibuster at the American Political Science Association. The moderator, Gregory Koger, is author of the book "Filibustering," which presents a bit of a problem for his panelists: We're actually going to have to know what we're talking about. Luckily, he's sent out his questions beforehand. Here's what I'm planning to say:

1) The 111th Congress has passed several landmark bills, including the stimulus act, health-care reform and financial regulation reform. Has Senate obstruction really had much influence on the legislative process?

You can answer this a few different ways, though all of them begin with the word "yes."

First, take the marquee pieces of legislation: Health-care reform, the stimulus and financial regulation. In a world without a filibuster, instead of signing every single Democrat to those initiatives, which means every single Democrat had veto power over anything they didn't like in those initiatives, you would have needed 51 of the 59 or 60 Democrats serving in the Senate. So rather than placating Max Baucus, Mark Pryor, Mary Landrieu, Jim Webb, Bill Nelson, Evan Bayh, Claire McCaskill, Blanche Lincoln, Tom Carper, and Ben Nelson, you would've only have needed to placate one of them, and then you could've negotiated with the others from a position of strength in which passage was assured and their vote would've simply been preferable.

Legislation constructed in that world simply looks different. Some might say it's worse, more extreme. I'd say there's less legislating to the lowest common denominator, and you can make harder choices. Either way, the stimulus is larger, maybe by a couple hundred billion dollars. Health care has a public option or a Medicare buy-in. That's the stuff people usually think of when they talk about the filibuster.

But as Greg writes in his book, breaking filibusters isn't impossible: It just takes time, procedural commitment and, though he doesn't say this, a sufficiently large majority. Sufficiently large majorities, however, are willing to expend time and play procedural hardball on their top issues. In those cases, the filibuster modifies the legislation -- maybe it makes it worse and maybe it makes it better, but it doesn't kill it off entirely. It's smaller bills with less commitment where filibusters and holds simply keep anything from happening at all: everything from nominations to regulatory changes to the everyday upkeep of the government.

And then there's the universe of legislation that never really gets attempted because the filibuster slows things down such that there's no time and little appetite for new fights. Nominations and funding bills simply have to get done, and so they usually do. But plenty of other efforts that should be considered never are, as there's just no space for them on the calendar.

Finally, I think the 111th Congress is a misleading Congress to look at. We've seen a once-in-a-generation alignment of forces: A 60-vote majority for the first time since the 1970s, a new and (initially) popular president, a massive financial crisis. Imagine this same environment and this same sort of procedural team play with 53 Democrats. That's a world in which our big problems simply do not get addressed -- and it's much closer to the world that we normally live in. I'd also say that on all three major issues -- financial reform, the stimulus, and health-care reform -- we ended up doing a lot less than was needed, and punting some of the hardest questions out to the future. So here's the report on our Congress: Even when given a generational opportunity to make progress on our problems, they can't make as much progress as we really need made. Eventually, that dynamic is going to catch up with us.

2) Name up to three reforms that you think the Senate should adopt, no matter which party is in the majority in the 112th Congress?

First, let's do the common-sense reform: I'd like to see the time-costs associated with obstruction reduced. If the filibuster was more like a 60-vote requirement and less something that minorities could use to slowdown the Senate by forcing everyone to spends weeks on an unemployment extension that passes 97-0, I think that'd be a good idea.

As a broader point, we need to think hard about the procedural arms race that the United States Senate has turned into. The filibuster has become a de facto 60-vote requirement, which wasn't the intention, and reconciliation is increasingly used for all manner of bills, including the Bush tax cuts and the health-care reform law, which also wasn't the procedure's original intention. Both situations lead to worse and more awkward legislation. We're also seeing the majority offload issues it wants to address but can't do over minority obstruction onto the executive branch, or the Federal Reserve. Think of the EPA handling carbon emissions, or the Fed dealing doing quantitative easing because only 59 Democrats are willing to vote for further fiscal policy. This devolution of power from Congress to actors who are less accountable but more able to act is something we need to consider very carefully. The outcome of obstruction isn't always gridlock -- sometimes it's simply a different form of action, and not always a form we should prefer.

3) How would we know if the Senate is broken? At what point would you say that the Senate needs to change?" (In other words, what are the proper metrics for evaluating the functioning of the Senate?)

I don't know that there is on objective metric for this. A libertarian might be ecstatic to see the Senate collapse into gridlock and acrimony. A deficit hawk might not. But either way, "broken" isn't a necessary measure here. We don't need to be so binary. "Better" and "worse" are more useful concepts. If the Senate isn't working well, and we could make it work better, the fact that it's not necessarily totally broken isn't a good reason to delay reforms.

And to the point of whether the Senate is working well, I'll leave folks with two of the underlying political dynamics that seem to be driving the place. We have rules, as everyone agrees, set up to encourage bipartisan cooperation. But the system gives the minority party both the incentive to see the majority fail, as that's how they win the next election, and the power to make them fail. So we have rules for a bipartisan world -- but we live in a partisan world. As Ron Brownstein likes to say, we've got parliamentary politics clashing with supermajoritarian rules. I'm not sure that really works.

Second, I think there's a real and growing question of political accountability. Political scientists like yourselves say that people vote on conditions, not politics. A recent Pew poll found that only 26 percent of Americans knew that you needed 60 votes to break a filibuster. Another 25 percent though you only needed 51. So in a world where people don't pay much attention to Congress and don't understand it very well and mainly vote based on a rough approximation of how well policies seem to be working in their own lives, how're they supposed to judge the majority's program when the majority isn't able to implement it? What're the chances that people are judging the majority based on outcomes driven by the minority? I'd say pretty high, and that's something that should worry us.

Finally, a lot of the defenses of the filibuster seem to be, well, idealistic. They talk about the preservation of debate, though anyone who's ever watched the Senate make its way through these bills knows that we're not seeing a high-minded effort at persuasion take place on the floor. They talk about the protection of minority involvement, and the incentives for bipartisanship. The problem, they say, isn't the system, but that it's being abused.

But if the system leads inexorably to abuse, then it's not a good system. I might prefer a world where the filibuster protects debate and ensures bipartisan outcomes, but I don't think we should pretend that's the world we have. The choice is between electorally driven gridlock and something else. I'd like something else.

Thanks for posting this, Ezra, since I don't have a TV and won't be watching the panel. I agree with the points you've made here, and have to say that I'm struck by the difference in legislative successes by winning parties in other countries, like France. I remember when I was living there in the 1990s, the Socialists enacted a sweeping civil unions law, and a measure that shortened maximum work hours at big companies (in an attempt at job sharing/job creation--both despite vociferous opposition. It looked as if a winning party could implement its platform in this system, thus fulfilling its promises and the "will of the majority of the electorate."

nancycadet @September 3, 2010 10:48 AM: Valid observations. The issue we have here is that we in essence have a parliamentary environment, but a system that assumes we don't. The result is that all that is accomplished is that we spend more money. Let's face it, for all the rampant patriotism we have not declared war on anyone since 1941!

All good points, Ezra. I'm sure that like every post on the filibuster we'll have to suffer through some comments of "Wait 'till November and we'll see if you change your tune." I'll to head them off a bit:

First, we don't need to wait for the Republicans to take power to see what our reaction will be. We already know for a fact that the Republicans will have a majority eventually in the Senate, possibly even after this election. That people are still advocating for elimination of the filibuster given that fact should be pretty telling.

That said, the filibuster should not have been eliminated to make passing healthcare easier, nor should it be eliminated to allow the next Senate to pass whatever it considers the most important issues of the day. The filibuster should be eliminated because it's a bad rule that hurts our legislative process. It should therefore be phased out several years in the future when we don't know who will hold the majority. 6-8 years seems reasonable to me.

I don't think that a super majority for ANY party is necessarily a good thing. The problem is only caused by republicans blocking issues brought out by the Democratic party. They would even block legislature that follows their own interests!

I'm sure you know this, Ezra, but in a Senate without a filibuster it would actually have only taken 50 Democratic Senators to pass bills because VP Biden has the decisive vote in case of a tie.

Anyway if filibusters, delay, and obstruction are bad (which they are for all the reasons Ezra lists), then there's no reason not to simply immediately (or in January) go to a 51 vote Senate. I'm not sure why keeping the country gridlocked for another 6 to 8 years before changing the rules is supposed to be an attractive option. Just make the rules change in January (assuming the Dems retain the Senate) and in 2012 no swing voters will even remember it happened. Voters don't care about process; they care about results, wars, and the economy. Meanwhile the Congress will actually be able to get important bills like immigration reform, a public option, and cap-and-trade passed.

redwards95, while I'd love to see some important legislation passed on a majority basis, I don't want changing the rules to be a political ploy. I don't want the Republicans to get power with a majoritarian Senate, pass all their priorities, and then put a procedural roadblock in the way to changing those laws once they lost the majority.

Gettin rid of the filibuster should be something we do because it's a bad rule, not because we can gain a temporary political advantage. If Dems get the majority after the filibuster is eliminated a few years down the road, and of course they will at some point, they can use the majority to pass legislation they would like to pass.

Replacing jockeying with the rules with changing the rules as the way the partisans fight it out is not an improvement.

Ezra,
Actually, another point to talk about a "broken" Senate is that a libertarian wouldn't like filibusters because it devolves Congressional law-making and the choices that go with it, for both time and vote considerations, to Executive agencies. Rule-making replaces law-making in such a way that encourages scope-creep and prevents removing rules/laws.
The government gets bigger because Congress can't wield the hedgretrimmer to tame it.

One handy evaluation of the filibuster comes from national opinion polls: debate rules are too soft if unwanted legislation passes and are too harsh if wanted legislation fails to pass.

The PPACA vote is an example. Polling data [using the RCP average] indicates that 58% oppose the PPACA while 38% favor; yet, at the same time in the Senate, 40% opposed while 60% favored (that is, the Senate exhibited the reverse of public preference). If the pre-1976 filibuster rule requiring 2/3rds (67 votes) had been in effect during the PPACA debate, the bill would not have passed: the more restrictive filibuster rule would have resulted in the outcome most desired by the majority of citizens.

The sort of mob mentality that led to the passage of the PPACA ought to be avoided and, frankly, I haven't heard an alternative better than the filibuster rule. In fact, it seems like the former rule might actually produce better results.

rmgreggory, using polling results on legislation to evaluate the value of Senate rules is a terrible metric. Voters' understanding of the PPACA is still pretty low and filled with misinformation. Not to mention that simply have an unfavorable view of a law doesn't take into acount *why*. Maybe people didn't like the process. Maybe people didn't like that it took so long to pass that we didn't spend as much time as we could have into jobs legislation. Maybe they think the bill is too complex and don't understand it. And then, of course, you have the counterfactual that without the filibuster it's possible that all of these things and more could potentially be addressed.

The short version is that that's a horrible metric for us to use. The filibuster is bad for all the reasons Ezra said.

I would like to see the suggestion made in one of Steve Pearlstein's chats adopted. It's less radical than what has been discussed by Ezra, but it may well solve 85 - 90% of the problem.

"The Senate Rules of Procedure should preclude the use of the filibuster on a Motion to Proceed, or to bring a bill before the Senate for unlimited debate. This would also require elimination of the parliamentary tactic of "filling the amendment tree," thereby blocking additional amendments to be offered. This would ensure all ideas could be offered, debated, and voted upon.

Only after a full and fair debate and amendment process should the filibuster be permitted, and then only to end debate. Doing so would ensure that legislation is, at a minimum, considered by the full Senate. It could have the effect of forcing compromise during the amendment process to achieve consensus.

And, most importantly, these changes would retain the extremely important principle of protecting the rights of the minority to block a bill if a 60-vote majority is not achieved."

jnc4p, that's an interesting idea, but how does that change the incentive of a politically charged minority to filibuster everything? This is especially true since minorities are no longer required to actually mount a verbal filibuster on the floor. There's simply too much for the Senate to get done for the entire body to be held up on procedural votes.

I like the idea of an increasing number of votes required to keep debate open. You start with something low, like 30, then after X period of extra debate a vote is taken again. This time you need 40 votes to keep debate open. After another span of time a vote it taken and you need 51. After that debate can be kept open as long as there are 51 votes, or debate ends and the matter comes down for a final vote.

That seems to me to protect the minority's right to fully debate the issue and not to have something pushed through by the majority without anyone having a chance to talk about it. At the same time, this takes away the minority's veto power on getting things done.

The best point Ezra's made about this is that we usually don't have 60 Senators from one party. Usually we have something more like 55. The minority should not have to power to decide that they're going to simply oppose everything and thereby hold up the government.

So much talk of filibuster, yet we have not seen one in years. Maybe the problem is that the "threat" of filibuster has become too powerful. If the minority party is dedicated to blocking legislation, let them stand and block it, not merely threaten to do so. Majority leadership on this issue has failed miserably, perhaps because the Leader has failed in his duties.

@MosBen "jnc4p, that's an interesting idea, but how does that change the incentive of a politically charged minority to filibuster everything? This is especially true since minorities are no longer required to actually mount a verbal filibuster on the floor. There's simply too much for the Senate to get done for the entire body to be held up on procedural votes."

The purpose is to eliminate the ability to filibuster (or rather threaten to filibuster) a Motion to Proceed. This allows the legislation to be debated, and also for amendments to be offered by anyone.

The theory is that during the amendment process compromises can be worked out on the floor of the Senate during the debate that will make the legislation more likely to be passed and also improve it.

Filibusters will only be allowed to actually end debate.

Again, this is a less radical suggestion but one that may resolve 80 - 90% of the problem.

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